Minister of Justice Monica Macovei is one of the few dignitaries to have indeed started fighting against corruption. Completion of a professional and independent audit on the anti-corruption strategy of the past four years was one of the recommendations included by the European Union in the safeguard clause. The Freedom House Report points to the main flaws in the Romanian legal system.
The analysis conducted by Freedom House, non-profit organisation, a notable voice advocating democracy and freedom around the world – has brought about a genuine earthquake in the Romanian justice system. Commissioned by Minister of Justice Monica Macovei, one of the few officials who have indeed set out to fight against corruption, the Report makes an in-depth review of the National Anti-corruption Strategy for 2001-2004. Completion of a professional and independent audit on the anti-corruption strategy of the past four years was one of the recommendations that the European Union included in the safeguard clause. The Report gave rise to harsh criticism by the former Power, including former President Ion Iliescu, the main parties responsible, according to Freedom House, for the lack of independence in justice. The Report has virtually sparked scandal among magistrates and even accusations that its authors made their assessments while having no in-depth knowledge of Romanian laws and the way the legal system works in Romania. On the other hand, there have been voices to suggest that FH was not selected to carry out the audit by chance, given that, prior to being appointed a Minister, Monica Macovei had led a human rights NGO.
The main flaw in the domestic legal system is, according to auditors, the fact that “spearhead” institutions in the fight against corruption, namely the National Anti-corruption Prosecutor’s Office (PNA) and the Public Ministry, were fully subordinated to the previous government. Thus, when asked to what extent this PNA is independent, the Americans’ answer was short and clear: “There have been permanent doubts regarding the PNA independence, in particular since such a strong institution could be used, under political control, as a tool against the Opposition”. The Freedom House Report also mentions something that local media kept silent about – the head of PNA is brother to PSD Deputy Constantin Amarie. The American organisation recommends that the Law regulating the PNA operation be amended in order to avoid such occurrences. FH suggests provisions on conflicts of interests in the Law, including for primary relatives, but also for former dignitaries holding political offices. “Investigative journalists and civil society representatives that FH talked to are extremely sceptical, and the PNA is seen as an institution wholly subordinated to the former Power … PNA has obviously had difficulties in answering corruption accusations involving Social-Democrats. Things are quite similar in the Public Ministry”, reads the Report, which also includes an example of investigation conducted upon political orders, namely the RAFO affair. The Report authors mention it is not without grounds that Romania is said to have made progress in combating corruption, although notable results have not been achieved in this respect. The phrasing is equivalent to a poor grade to the PSD rule, which has often gone through the motions in the fight against corruption, only grandstanding for the European Union.
The most serious conclusions drawn by the authors of the Report are: failure to use administrative tools for corruption combating, poor coordination between law enforcement institutions and the Prosecutor’s Office, and the lack of political and professional independence of prosecutors in charge with investigating corruption files. Thus, in the FH opinion, the PNA is neither independent, nor efficient. Nor is the Romanian legal system on the whole. The Prosecutor General’s Office or the Higher Council of the Judiciary fare no better in terms of independence. Both institutions were in turn obedient to previous rulers and acted on political orders. A relevant proof in this respect is the corruption in the legal system, one of the main issues Romania has to tackle quite soon, if it means to become a EU Member State this year. Otherwise, the safeguard clause would be activated and integration deferred.
By commissioning this report, Monica Macovei met the commitment she undertook when she agreed to take over the mandate. Freedom House is a non-governmental organisation whose authority is generally hard to challenge. Even for officials in the Romanian Justice system, who, caught red-handed in the corruption chapter, staged a huge scandal in an attempt to disprove accusations. But it took them more than a week to respond to the criticism brought by the document, which could be easily read and considered in a matter of hours. They probably took the time to find ways to defend themselves. But to no avail. All of us know Justice does not run smoothly. The audit gives a no-pass to Ioan Amarie. Which means he should be replaced. And the Justice Minister has already advised the PNA head to resign, and accused the PNA leading structure of having employed political criteria in handling top-level corruption cases.
Ioan Amarie not only refused to resign, keen as he is on keeping his chair, but also claimed he did fight against corruption. Moreover, he asserted there was no reason for him to resign, and that under the law only the President has the authority of releasing magistrates from office.
Monica Macovei says however she was expecting such stern reactions from the PNA. “It is for the first time that a non-profit organisation assesses public institutions such as the National Anti-corruption Prosecutor’s Office, the Prosecutor’s Office attached to the Supreme Court, and so on. It is something unheard of in Romania, and I believe public institutions, Prosecutors’ Offices in particular, have a poor opinion on NGOs. In the best of cases they pay no attention to NGOs, and now, such an institution comes out of the blue to check on them. I should say this is how reform starts, by shaking the system up. Such reactions are only natural,” she concluded.
Shortly after the release of the Freedom House Report, the Ministry of Justice initiated consultations on the National Anti-corruption Strategy for 2005-2007. The 2005-2007 anti-corruption strategy stipulates that the Ministry of Justice intends to strengthen the independence of the PNA by having the institution no longer coordinated by the Prosecutor’s Office attached to the Supreme Court of Justice.
June 2005 is the deadline set for the Ministry of Justice to revise the existing legal framework in the sense of reorganising the National Anti-corruption Prosecutor’s Office, of restricting its attributions to high level corruption, and of establishing a department in the PNA to coordinate the institution’s cooperation with other corruption combating bodies.
The Ministry of Justice plans to modify and complete the PNA Act by June, by including special incompatibility and conflict of interest provisions for all senior offices in the PNA.
Also, legislative modifications will have to set out clear procedures for the cooperation between PNA and all other structures working in the anti-corruption field.
Selection of PNA prosecutors by means of professional performance appraisal and assessment of the human and financial resources needed for the PNA operation in 2005-2007 are also objectives stipulated in the Anti-corruption Strategy and which must be reached by the end of this year. The Ministry also proposes that the PNA draw up and make public annual reports on more convincing performances in the combating of top-level corruption.
Also, the Anti-corruption Strategy aims to reduce the number of structures having attributions in the anti-corruption fight. Thus, by December 2005, an analysis will be conducted, to establish the exact number and to redefine and clearly identify the attributions of all authorities and institutions which are currently operating in the corruption combating and preventing field. The Anti-corruption Strategy aims to have the National Anti-Corruption Prosecutor’s Office establish, by December 2006, a database for clear records of categories of persons investigated, sent to Court and issued final sentences for top level corruption deeds, the period of investigation and the amount of damages, the value of assets under restraint and confiscated for such felonies. The project requires funds of 130,000 Euros.
The National Anti-corruption Strategy also stipulates that by September 2005 legislation will be modified in the sense of ensuring prosecutor independence and employment of the principle of continuity in the criminal investigation stage as well.
Legislative modifications must be aimed at instating objective criteria for assigning cases to prosecutors and restricting possibilities for files to be reassigned or taken over by senior prosecutors, except for situations explicitly and strictly stipulated under the Law. Thus, a prosecutor will be able to challenge in the Higher Council of the Judiciary (CSM) the reassigning of a case to his senior prosecutor, as well as the latter’s intervention during the criminal investigation procedures. In turn, the Court will be able to check the invalidation documents drawn up by the senior prosecutor, at the request of the respective investigating prosecutor. Legislative modifications will also seek to ensure prosecutors’ direct and effective control on the criminal investigation operations conducted by the judicial police. Furthermore, prosecutors investigating organised crime and corruption files will have unlimited access to all information necessary in the process of investigation. The said amendments must be endorsed by next spring.
As of September 2005, magistrates will be consulted by members of an independent organisations, regarding their perception on the legal system independence.
The National Anti-corruption Strategy also stipulates that the Ministry of Justice will immediately draw up the bill to modify and complete the three Laws on the legal system reform. The bill will pursue several lines, such as reducing length in service considerations in promotion, modification of retirement clauses, setting CSM members’ activity on a full-time basis, extending CSM authorisation for inquiries into magistrates for action within their office attributions, elimination of the obligation to establish specialised courts. Thus, by June the Ministry of Justice must draw up the bill on assigning grant contracts funded from public budgets. Also, the Government Secretariat General (SGG), jointly with other institutions, must regulate the allocation of public advertising funds. By December 2005, the Ministry of Justice, National Anti-corruption Prosecutor’s Office, and other institutions, will jointly review current regulations on the financing of political parties, the regime of discounts that services providers may offer to political parties and candidates, as well as on stimulating transparency in campaign fund management. The draft act must also include sanctions for breaking regulations on the financing of political parties and electoral campaigns, for cases in which public funds are being used in the electoral campaigns of public office holders, for parties’ failure to publish revenues and expenditure budgets and breaking mandate validation procedures. Starting May 2005, on an annual basis and during electoral campaigns the Court of Accounts will draw up and make public audit reports on the financing of political parties and electoral campaigns, while as of June 2006 it is to monitor the publication of donor lists and amounts granted to political parties. The National Anti-corruption Strategy also refers to the revision – no later than June 2006 – of legislation which restricts access to public interest information (Law 182/2002 on the protection of classified information, Law 16/1996 on the National Archives, Law 51/1991 on national safety, Law 14/1992 on the Romanian Intelligence Service (SRI), Law 7/1997 on the Foreign Intelligence Service (SIE), the Criminal Code). By April 2005, the Ministry is to ensure enforcement of Law 52/2003 on transparency in public administration decision-making and of Law 544/2001 on free access to public information. In May 2005 – December 2007, one-stop offices must be introduced in the public administration system, while December 2007 is the deadline for revising civil servant legislation.
This revision will involve introduction of competence criteria for professional appraisal and adequate wages, personnel rotation in sectors vulnerable to corruption, consolidating the role of the National Agency for Civil Servants as an advanced monitoring, analysis and reporting institution.
By Lavinia Grigore
